NSBA Amicus Brief - Grace Tuttle et al. v. The Arlington County Public Schools (4th Cir.)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________

No. 98-1604

__________

GRACE TUTTLE, et al.,

Plaintiffs-Appellees,

v.

THE ARLINGTON COUNTY PUBLIC SCHOOLS, et al.,

Defendants-Appellants

__________________________

On Appeal from the United States District Court

for the Eastern District of Virginia

___________________________

BRIEF OF AMICI CURIAE

AMERICAN ASSOCIATION OF SCHOOL ADMINISTRATORS,

COUNCIL OF THE GREAT CITY SCHOOLS,

MAGNET SCHOOLS OF AMERICA AND

NATIONAL SCHOOL BOARDS ASSOCIATION

__________________________

INTEREST OF AMICI

The American Association of School Administrators (AASA) is the professional organization for 15,000 local superintendents and other local school system leaders. Its mission is to provide quality education to every student through well trained and enlightened local leadership. AASA has a profound interest in helping local school leaders provide students an educational environment that prepares them for citizenship in a diverse nation and global society.

The Council of the Great City Schools (the Council) is a coalition of 50 of the nation's largest urban public school systems. The Council was organized in 1961 to assist large urban schools to develop and implement programs designed to ensure quality education and equality of educational opportunities for urban children. The Council serves over six million children in inner city schools around the nation, which is 13.5 percent of the nation's total elementary and secondary school enrollment. About 75 percent of the total student population in the Council members' districts are African American, Hispanic, Asian American and other students of color. Out of the nation's total student enrollment, the Council's student population includes approximately 30 percent of the nation's poor children, 40 percent of the nation's linguistically diverse students (who speak over 100 languages), and 12 percent of the nation's disabled children. The Council believes it is critical that all students shall benefit from a diverse educational environment. The member districts of the Council value the richness of its culturally and linguistically diverse students and communities. The Council believes that this case is important to the nation's urban schools so that they remain free to determine eligibility criteria to maintain a racially balanced and integrated educational environment for all students.

Magnet Schools of America (MSA) is a not-for-profit educational organization with the objectives to promote equity, excellence, innovation and the reduction of minority isolation. There are more than 4200 magnet schools throughout the United States. MSA's interest is on behalf of approximately 1.5 million children attending these innovative and diverse public schools. The issue in this matter is of national concern to magnet schools, which will be negatively affected by the lower court's ruling that the goal of diversity is not a legitimate government sponsored activity. Specifically, MSA strongly supports the federal grant program, the Magnet Schools Assistance Program, designed to support the desegregation of public schools by supporting the elimination, reduction, or prevention of minority group isolation in elementary and secondary public schools with substantial numbers of minority group students. Magnet schools promote the development and implementation of systemic reforms and innovative methods that provide all students with the opportunity to meet challenging content and performance standards, while promoting an ethnically and economically diverse student population.

The National School Boards Association (NSBA) is a not-for-profit federation of this nation’s 49 state school board associations, the Hawaii State Board of Education, and the boards of education of the District of Columbia, Guam, Hawaii and the U.S. Virgin Islands. Founded in 1940, NSBA represents the nation’s 95,000 school board members, who in turn, govern 14,772 local school districts that serve more than 46.5 million public school students—approximately 90 percent of the elementary and secondary students in the nation. NSBA has had a long interest in the effective development and implementation of local school board policies including those that set student enrollment standards and procedures in order to promote educational objectives. It has a strong interest in ensuring that school boards retain the discretion and autonomy to select those objectives based on changing community values and needs.

ISSUE PRESENTED FOR REVIEW

Whether a school district may consistent with the equal protection clause adopt and implement a student admissions policy that uses race as a factor to achieve a diverse student body for educational reasons.

STATEMENT OF THE CASE

Amici incorporate by reference the statement of the case contained in Appellants’ brief.

SUMMARY OF THE ARGUMENT

Amici respectfully urge this court to reverse the lower court’s decision because it establishes a per se rule that prohibits schools from considering race except for remedial purposes that address prior discrimination. Such a rule ignores the special place and function of education in our society and severely diminishes the fundamental power long accorded school boards to set policies and administrators to implement those policies according to their own judgment about how to promote the educational goals they have selected based on community values and needs. When compelling educational reasons support the use of race conscious policies that promote diversity in student enrollments, school districts should not be precluded from adopting such policies. Furthermore, the lower court decision forbids schools from adopting integrative policies designed to avert racial isolation that results from "white flight" within districts and from other external forces before the problems that accompany segregation become full-blown and the educational damage irreparable. Amici contend that if schools ultimately will be held legally responsible for fixing the problems, they should not be deprived of the power to prevent them in the first place.

ARGUMENT

INTRODUCTION

Unfortunately, much of the legal history of schools, race and the equal protection clause involves remedying past wrongs that resulted in many children being denied access to an equal educational opportunity solely because of their race. This case does not involve correcting past race discrimination or the denial of educational opportunity. It raises the question of whether the Constitution allows school boards to look to the future and to promote diversity and integrated student enrollments for educational, rather than legal, reasons. Amici contend that the equal protection clause allows schools that have not engaged in prior discrimination to adopt student assignment policies that recognize the educational benefit afforded to all students, regardless of their race or ethnicity, of learning in an environment that reflects the diversity that exists in their communities and so better prepares them to live, work and interact in a diverse and complex world. The law should not be interpreted to prohibit schools from adopting integrative policies that seek to prevent the development or re-emergence of segregated education and the tremendous negative consequences that flow from it. For the reasons below, Amici urge this court to declare that the equal protection clause permits schools to adopt and implement policies that use race as a factor to serve compelling educational interests in teaching children what they need to know to live in a pluralistic society and in preventing racially isolated educational environments.

I. THE UNIQUE GOVERNMENTAL FUNCTION OF SCHOOLS WARRANTS SPECIAL CONSIDERATION UNDER OUR NATION’S LAWS INCLUDING CONSTITUTIONAL APPROVAL OF A POLICY THAT SERVES COMPELLING GOVERNMENTAL INTERESTS BY PROMOTING DIVERSITY FOR EDUCATIONAL REASONS.

The lower court’s per se rule ignores the reality that education has historically occupied a position of unmatched importance in this society. This remains true today. In our nation we have made the paramount task of educating our children a largely public function to be carried out by governmental entities and have recognized the necessity of ensuring that all children have equal access to educational opportunity. In Brown v. Board of Education, 347 U.S. 483, 493 (1954), the Supreme Court recognized its unparalleled importance, declaring,

education is perhaps the most important function of state and local governments … It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.

The Brown Court’s acknowledgement of the preeminent status of education reflects a consistent historical reiteration of its importance to the maintenance of a strong democratic state:

All would agree that the legislator should make the education of the young his chief and foremost concern. . . The constitution of a state will suffer if education is neglected.

Aristotle, The Politics, at Book VIII, ch. 1, 1337 a II, quoted in Martin D. Carcieri, Democracy and Education in the Thought of Jefferson and Madison, 26 J. L. & Educ. 1, 30 (1997).

One of the Founders of our nation likewise viewed education as critical to the strength and survival of democracy. Thomas Jefferson in the "Rockfish Gap Report," which he wrote to recommend to the governor the most suitable site for the University of Virginia, stated that one of the broad aims of education in our country is to instruct the masses in their rights, interests and duties as people and as citizens, including teaching them how to "observe with intelligence and faithfulness all the social relations under which [they] shall be placed." Quoted in J. Conant, Thomas Jefferson and the Development of American Public Education 129 (1962).

Because of the special place of education as a governmental function, the Supreme Court in other constitutional contexts has applied different standards than those imposed on other state actors--standards that permit judicial deference to school officials’ decisions on the substance and methodology of education and on matters respecting the health and safety of students entrusted to their care. See, e.g., Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)(students’ free speech rights do not override the authority of school officials to make reasonable pedagogical decision regarding the content of school newspapers); Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)(students’ free speech rights do not prevent school officials from punishing a student for sexual innuendo in a speech during a school assembly); New Jersey v. T.L.O., 469 U.S. 325 (1985) (students’ right to be free from unreasonable searches must be viewed in the light of school officials’ responsibility for health and safety of students). In Vernonia School District No. 47J v. Acton, 515 U.S. 646 (1995), which upheld a school district’s random drug testing program for school athletes, the Court based its decision in part on the special responsibilities of schools and warned against transferring its conclusion and rationale to other governmental entities:

We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case, is the first we discussed: that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.

Id. at 665 (emphasis added).

Amici, of course, do not suggest that the authority of school officials is absolute or beyond constitutional bounds. School searches must be reasonable in light of the circumstances. Control over student speech in school newspapers must be reasonably related to a pedagogical goal. And school officials may not make student assignments so as to deny an equal educational opportunity to students solely on the basis of their race; however, a compelling case can be made that schools should be able to adopt policies that consider race as a factor in an effort to foster diversity in student body composition for educational reasons. Thus, when boards of education make such decisions to promote diversity in student enrollment for educational reasons, courts should defer.

The Supreme Court has consistently recognized that policy decisions made for valid educational purposes are within the power and province of school boards and that this encompasses making race conscious decisions outside of court-mandated desegregation plans:

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole. To do this is an educational policy within the broad discretionary powers of school authorities.

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971). Thus, the Court has accepted that schools may legitimately choose as a matter of policy to require that each school’s student enrollment proportionally reflect the racial composition of the student population in the district as a whole. Furthermore, the Court has reaffirmed on a number of occasions the importance of maintaining the power to make educational decisions in local school boards that allows "citizens to participate in decisionmaking and allows innovation so that school programs fit local needs." Board of Education v. Dowell, 498 U.S. 237, 248 (1991). The Court again noted the propriety of judicial respect for this authority in Freeman v. Pitts, 503 U.S. 467 (1992), saying "we have long observed [that] ‘local autonomy of school districts is a vital national tradition.’" Id. at 490 (citing Dayton Board of Education v. Brinkman, 433 U.S. 406, 410 (1977)).

Judicial deference, rather than a remedial purpose only rule, in the special context of education makes even more sense when one considers that courts have recognized that diversity can serve a compelling interest justifying non-remedial, race-based decisions in the performance of other governmental functions. See, e.g., Talbert v. City of Richmond, 648 F.2d 925, 931-32 (4^th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); Baker v. City of St. Petersburg, 400 F.2d 294, 301 n. 10 (5^th Cir. 1968); Detroit Police Officers’ Association v. Young, 608 F.2d 671, 695-696 (6^th Cir. 1979), cert. denied, 452 U.S. 938 (1981) (visibly integrated police force can instill public confidence and respect in law enforcement institutions in a manner that cannot be accomplished by a one-race force); Wittmer v. Peters, 87 F.3d 916 (7^th Cir. 1996), cert. denied, 117 S. Ct. 949 (1997) (prison warden established compelling interest in having a diverse work force at a boot camp prison thereby justifying the use of race as a factor in hiring a lieutenant).

Even more significantly, courts have accepted that educational institutions may be able to establish a compelling interest in obtaining the educational benefits of a racially diverse faculty and so may use race as a factor in assignment or transfer decisions. See, e.g., Jacobson v. Cincinnati Board of Education, 961 F.2d 100, 102-03 (6^th Cir.), cert. denied, 506 U.S. 830 (1992). And since the lower court’s decision in this case, at least one federal district court has held that diversity in student composition is a compelling interest that justifies using race as a criterion for admission to three "examination" schools in Boston. Wessman v. Boston School Committee, CA No. 97-11923-JLT (D. Mass. May 28, 1998). The court in Wessman rejected the per se approach of the lower court here and instead allowed the school district to present evidence to establish that diversity in student body composition in fact serves a compelling interest in producing an educated citizenry able to "share life in a complex, pluralistic society." It "mystifies" amici as to why the lower court found the Fifth Circuit’s divided panel decision in Hopwood v. State of Texas, 78 F.3d 932 (5^th Cir.), cert. denied, 518 U.S. 1033 (1996), controlling when the weight of precedent and public policy considerations clearly point to the opposite conclusion and at the very least establish that school districts that assert diversity as justification for race conscious policies ought to be allowed their day in court when those policies are legally challenged.

II. ESTABLISHING DIVERSITY IN STUDENT BODY COMPOSITION SERVES A COMPELLING EDUCATIONAL INTEREST IN ENHANCING THE EDUCATIONAL EXPERIENCE OF ALL STUDENTS BY FOSTERING TOLERANCE AND MUTUAL RESPECT AND PROVOKING INTELLECTUAL GROWTH CRITICAL TO LIVING IN A COMPLEX AND DIVERSE SOCIETY.

In this case, the school board sought to promote diversity in its student body because it viewed it as a powerful educational tool to encourage tolerance, acceptance and respect among all races and ethnicities and to promote intellectual growth through understanding of and exposure to people of diverse backgrounds. Students learn as much from their experiences as they do from what they are told. They can be told that people are all equal regardless of race, but when they learn it from their own experience, it becomes a life-long lesson rooted in reality and not a mere platitude or an idealistic notion. As Justice Stevens pointed out in his dissent in Wygant v. Jackson Board of Education, 476 U.S. 267, 315 (1986):

For one of the most important lessons that the American public schools teach is that the diverse ethnic, cultural and national backgrounds that have been brought together in our famous "melting pot," do not identify essential differences among human beings that inhabit our land. It is one thing for a white child to be taught by a white teacher that color, like beauty, is only "skin deep"; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.

The Institute for Social Research at the University of Michigan analyzed data from the Monitoring the Future Project (1993), finding a close correlation between positive attitudes about members of other races and exposure to members of other races. High school students who had attended segregated elementary schools and those who attended racially integrated schools were both asked questions regarding their racial attitudes. Those from integrated elementary schools were significantly more positive in their attitude regarding the desirability of having close personal friends of another race and job supervisors of a different race. These same respondents viewed the desirability of having children attend school with all children of the same race as significantly less desirable than the other group from segregated schools.

These results confirm what is a matter of common sense: that positive exposure to members of other races will lead to a more positive attitude toward those races. Substantial data support the proposition that both whites and blacks who are educated in desegregated schools are more likely to live and work in desegregated environments as adults and to maintain social contacts with other races. Marvin Dawkins and Jomills Braddock, The Continuing Significance of Desegregation: School Racial Composition and African American Inclusion in American Society, 63 J. Negro Educ. 394-405 (1994). As Jefferson noted one of the functions of education is to prepare students to "observe with intelligence . . . all the social relations" in which they will find themselves. Given the growing diversity of our nation, it is imperative that schools be allowed to find ways to achieve this purpose, but the task becomes nearly impossible if they can do nothing to avoid creating or perpetuating educationally insular environments that satisfy personal comfort needs or biases for homogeneity but do nothing to foster mutual respect among diverse peoples and to dispel racial and ethnic stereotypes.

Schools may seek to adopt policies that encourage diverse student bodies for educational reasons beyond teaching tolerance and reducing bigotry--reasons that involve enhancing the intellectual environment in which students learn. Justice Powell in Regents of the University of California v. Bakke, 438 U.S. 265, 314 (1978), expressed the other educational dividends that flow from a diverse student body as follows:

[A] . . . student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring . . . experiences, outlooks and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.

These benefits have long been recognized and were cited by James Madison in a letter he wrote advocating, among other things, the inclusion of geography in a basic liberal education. He urged,

No information seems better calculated to expand the mind and gratify curiosity. … This is especially the case with what relates to the Globe we inhabit, the nations among which it is divided and the character and customs which distinguish them. An acquaintance with foreign countries in this mode . . .never fails, in uncorrupted minds, to weaken local prejudices and enlarge the sphere of benevolent feelings.

James Madison, Letter to Samuel S. Lewis, February 16, 1829, in Letters and other Writings of James Madison 30-31 (Rives & Fendall, eds. 1884), quoted in Carcieri, 26 J. L. & Educ. at 23. Thus, Madison viewed the study of geography and other cultures in the public elementary curriculum as a way to promote tolerance--a tolerance that respects the civil liberties of others and allows individuals to see their shared humanity with those with whom they do not agree or who are different from themselves. The exposure to different perspectives and ways of thinking cannot but provoke the intellectual growth that is necessary for individuals to understand themselves and to assume their responsibilities as members of a complex and diverse political, economic and social community. Clifford Geertz described this expansion of the mind in a collection of essays entitled, Local Knowledge: Further Essays in Interpretive Anthropology 16 (1983):

To see ourselves as others see us can be eye-opening. To see others as sharing a nature with ourselves is the merest decency. But it is from the far more difficult achievement of seeing ourselves amongst others, as a local example of the forms human life has locally taken, a case among cases, a world among worlds, that the largeness of mind, without which objectivity is self-congratulation and tolerance a sham, comes.

Quoted in T. Alexander Aleinikoff, A Case for Race Consciousness, 91 Colum. L. Rev. 1060, 1081 (1991).

The importance of diversity to acquiring this essential "largeness of mind" is reflected in various educational programs such as the J. William Fulbright Educational Exchange Program established by Congress:

Man’s struggle to be rational about himself, about his relationship to his own society and the other peoples and nations involves a constant search for understanding among all peoples and all cultures—a search that can only be effective when learning is pursued on a worldwide basis.

Foreword from The Fulbright Program: A History. Congress has passed numerous other

cultural exchange programs such as the International Visitors Program, the Samantha Smith Memorial Exchange Program, the exchange programs of the National Academy of Sciences, the Experiment in International Living, the American Field Service Committee, and Youth for Understanding. In addition, as part of the Goals 2000: Educate America Act, Congress adopted a wide ranging International Education Program for students at the secondary level. 20 U.S.C. § 5951.

The high priority assigned by the federal government to securing the educational advantages for all students that derive from a diverse student population is manifest in the Magnet Schools Assistance Program. Congress, noting the dramatic increase since 1988 in the use of magnet schools that now serve over 1,400,000 students, recognized that "magnet schools are a significant part of our Nation’s effort to achieve voluntary desegregation in our Nation’s schools." 20 U.S.C. § 7201(1). The statute declares that:

it is in the best interest of the Federal Government to—(A)continue the Federal Government’s support of school districts implementing court-ordered desegregation plans and school districts seeking to foster meaningful interaction among students of different racial and ethnic backgrounds, beginning at the earliest stage of such students’ education; (B)ensure that all students have equitable access to quality education that will prepare such students to function well in a culturally diverse, technologically oriented, and highly competitive, global community; and (C) maximize the ability of local educational agencies to plan, develop, implement and continue effective and innovative magnet schools that contribute to State and local systemic reform.

Id. at § 7201(5) (emphasis added).

Thus, the lower court’s error in discounting the possibility that achieving diversity could ever be a compelling government interest justifying race conscious decisions becomes patently obvious in light of the historical, scholarly, congressional and even judicial recognition that the educational benefits with which diversity endows the students under its tutelage are of supreme interest to our nation.

III. ESTABLISHING DIVERSITY IN STUDENT BODY COMPOSITION PROMOTES A COMPELLING GOVERNMENTAL INTERST IN EDUCATIONAL EQUITY BY SPREADING THE BURDENS THAT ACCOMPANY EDUCATING STUDENTS FROM VARIED BACKGROUNDS.

The other primary motivation for the Arlington County School Board’s adoption of a weighted lottery system that created a pool of applicants reasonably duplicating the diversity found in the county-wide student population is to ensure that every school in its system shares the educational burdens imposed by the special needs of students from diverse backgrounds. The necessity of distributing these educational responsibilities becomes irrefutable when one considers the tremendous burdens that schools segregated by race and income have long experienced and continue to endure. Professor Gary Orfield in a report documenting the re-emergence of segregation in American public schools summarized the problems as follows:

Segregation by race [is] very likely to mean segregation by poverty. . . .If poverty is systematically linked to educational inequality, as it consistently is in educational research, the very powerful link between racial and poverty segregation is a central element in perpetuating the educational inequality of minority students.

* * * * * *

Equal educational opportunity is the fundamental American answer to inequality but segregated schools concentrate poverty and low achievement in schools that are not equal. Children in such schools are literally cut off from avenues to opportunities commonly available in middle class schools. The segregated schools have, on average, much lower achievement and are often so overwhelmed with problems of poor families isolated in neighborhoods without connections to opportunity, that the task of providing access for minority students to stronger schools deserves high priority.

Gary Orfield, The Growth of Segregation in American Schools: Changing Patterns of Separation and Poverty Since 1968, at 22, 24 (Harvard Project on School Desegregation, 1993).

The exigency of a preventive, pro-active approach that requires additional assistance to ensure that students from diverse backgrounds have the opportunity to flourish in equitable learning environments underlies numerous federal programs that provide funds to local education agencies for the specific educational needs of certain categories of students. These programs use criteria similar to those used by Arlington County Public Schools to identify the intended beneficiaries; among the classifications used are income, first language, gender, race and national origin. Experience has verified that these are educationally valid distinctions. The authorizing statutes set forth the congressional findings, statement of purpose or the adoption of national policy underpinning these programs:

Emergency Immigrant Education Program, (classification by national origin):

The purpose of this part is to assist local educational agencies that experience unexpectedly large increases in their student population due to immigration to—(1) provide high quality instruction to immigrant children and youth; and (2) help such children and youth—(A) with their transition into American society; and (B) meet the same challenging State performance standards expected of all children and youth.

20 U.S.C. § 7541(b).

Bilingual Education Programs , (classification by language proficiency):

The Congress finds that . . . .(2) there are a large and growing number of children and youth of limited English proficiency, many of whom have a cultural heritage that differs from that of their English-proficient peers; . . . (5) limited English proficient children and youth face a number of challenges in receiving an education that will enable such children to participate fully in American society, including—(A) segregated education programs; (B) disproportionate and improper placement in special education and other special programs due to the use of inappropriate evaluation procedures; (C) the limited-English proficiency of their own parents, which hinders the parents’ ability to fully participate in the education of their children; and (D) a shortage of teachers and other staff who are professionally trained and qualified to serve such children and youth; . . .(8) it is the purpose of this subchapter to help ensure that limited English proficient students master English and develop high levels of academic attainment in content areas; . . .(10) as the world becomes increasingly interdependent and as international communication becomes a daily occurrence in government, business, commerce, and family life, multilingual skills constitute an important national resource which deserves protection and development; . . .

20 U.S.C. § 7402(a).

Women’s Educational Equity Act, (classification by gender):

The Congress finds that--. . .(3) teaching and learning practices in the United States are frequently inequitable as such practices relate to women and girls,. . . (4) efforts to improve the quality of public education also must include efforts to ensure equal access to quality education programs for all women and girls;. . .(6) Federal assistance for gender equity must be tied to systemic reform, involve collaborative efforts to implement effective gender practices at the local level, and encourage parental participation; and (7) excellence in education, high educational achievements and standards, and the full participation of women and girls in American society, cannot be achieved without educational equity for women and girls.

20 U.S.C. § 7231(b).

Title I, (classification by income):

The Congress recognizes that—(1) although the achievement gap between disadvantaged children and other children has been reduced by half over the past two decades, a sizable gap remains and many segments of our society lack the opportunity to become well educated; (2) the most urgent need for educational improvement is in schools with high concentrations of children from low-income families and achieving the National Education Goals will not be possible without substantial improvement in such schools;* * * *(11) Resources provided under this subchapter can be better targeted on the highest-poverty local educational agencies and schools that have children most in need.* * * The purpose of this subchapter is to enable schools to provide opportunities for children served to acquire the knowledge and skills contained in the challenging State content standards and to meet the challenging State performance standards developed for all children . . .

20 U.S.C. § 6301(b), (c) and (d).

Project Head Start, (classification by income):

In recognition of the role which Project Head Start has played in the effective delivery of comprehensive health, educational, nutritional and social and other services to economically disadvantaged children and their families; it is the purpose of this subchapter to extend the authority for the appropriation of funds for such program.

42 U.S.C. § 9831(a).

Indian, Native Hawaiian, and Alaska Native Education Program, (classification by race):

The Congress finds that—(1) the Federal Government has a special responsibility to ensure that educational programs for all American Indian and Alaska Native children and adults—(A) are based on high-quality, internationally competitive content standards and student performance and build on Indian culture and the Indian community; (B) assist local educational agencies, Indian tribes and other entities and individuals in providing Indian students the opportunity to achieve such standards; and (C) meet the special educational and culturally related academic needs of American Indian and Alaska Native students;. . . .

20 U.S.C. § 7801.

Magnet Schools Assistance Program, (classification by race and ethnic background):

[I]t is in the best interest of the Federal Government to—(A)continue the Federal Government’s support of school districts implementing court-ordered desegregation plans and school districts seeking to foster meaningful interaction among students of different racial and ethnic backgrounds, beginning at the earliest stage of such students’ education; (B)ensure that all students have equitable access to quality education that will prepare such students to function well in a culturally diverse, technologically oriented, and highly competitive, global community; and (C) maximize the ability of local educational agencies to plan, develop, implement and continue effective and innovative magnet schools that contribute to State and local systemic reform.

20 U.S.C. § 7201(5).

Local education initiatives, in addition to those receiving federal assistance, support the educational appropriateness of classifications like the ones used by Arlington County. For example, in Fairfax County, Virginia, the public school system operates a magnet elementary school called Bailey’s Elementary School for the Arts and Sciences which uses its enhanced educational program to attract from across the county students who are native English speakers. The Fairfax County School Board approved the establishment of this program to provide linguistic balance and interaction for the children from Bailey’s normal attendance zone, the majority of whom come from homes where Spanish is the primary language.

Clearly then, the Arlington County School Board’s adoption of an admissions procedure that takes into account income, first language and race (as a last resort) to distribute among its schools the responsibility of educating diverse student populations derives not from some amorphous concept of political correctness or from personal preferences but from the exercise of sound educational judgment supported by the history of American public education that warns against allowing concentrated pockets of racial segregation and economic disadvantage to emerge in our schools and by the mainstream of current instructional practice and policy to promote educational equity and excellence.

IV. THE LOWER COURT’S RULING UNJUSTLY AND UNWISELY PROHIBITS SCHOOLS FROM USING RACE CONSCIOUS PREVENTIVE MEASURES TO AVERT THE DEVELOPMENT OR THE RE-EMERGENCE OF SEGREGATED EDUCATIONAL ENVIRONMENTS FOR WHICH SCHOOLS MAY BE HELD LEGALLY AND FINANCIALLY RESPONSIBLE FOR REMEDYING.

The lower court’s decision restricting a school board’s use of race in establishing student assignment policies to remedial purposes impels schools on to a constitutional razor’s edge between perpetuating or promoting impermissible segregation or engaging in illegal discrimination by adopting integrative policies that use race as a factor in creating diverse student bodies to ensure and enhance the quality of education for all children. Amici view the lower court’s position as creating a legally untenable constitutional irony: it interprets the equal protection clause to require schools to assume legal and financial responsibility for curing the immense adverse consequences that segregation causes but to prevent schools from voluntarily taking race conscious action aimed at preventing the development of racially isolated schools before the separation and inequities become so intense that judicial intervention is necessary to remedy them. To declare this to be the state of the law defies all logic.

This court has already rejected this proposition with regard to formerly segregated schools that have been declared unitary. In Riddick v. School Board of City of Norfolk, 784 F.2d 521 (4^th Cir.), cert. denied, 479 U.S. 938 (1986), this court recognized that such schools must be given some leeway in using race as a factor in student assignment plans if they are to maintain the racial balance achieved under court-ordered desegregation by responding to re-emerging segregation caused by white flight and other personal choices over which they have little control. However, under the lower court’s reading of the law, schools that have successfully eliminated all vestiges of segregation are prevented from making any future decision based on race unless it serves some remedial purpose. In other words, instead of being able to exercise foresight and carry out the responsibility entrusted to them by the electorate, they must simply stand by and wring their hands and watch segregation wreak its havoc all over again. It makes little sense that school districts must wait until a court says those conditions have become constitutionally unacceptable before they can act, when the "ounce of prevention " would indeed have been worth a "pound of cure."

Many school systems, like Arlington County, that have not been found to have engaged in past racial discrimination would also be forced into a legally and educationally hopeless position by the lower court’s ruling. Despite being faced with demographic shifts, upsurges in immigrant populations and changing housing patterns that foretell impending racial imbalance, they would be limited in what types of actions they could take to avert the certainty of harmful isolationism. For example, the lower court’s ruling would prevent schools from requiring racial balance in students accepted into optional transfer programs or other types of alternative settings such as charter schools but would leave them subject to the expense and burden of litigation and ultimate liability for correcting the educational damage inflicted by the segregation that they may have been able to prevent from occurring in the first place had their hands not been legally tied.

The re-emergence of segregation in America’s schools, see Orfield, supra, makes it critical that school districts be accorded the legal flexibility to use their own initiative and judgment to use race conscious policies responsibly to cope with this unfortunate phenomenon. The lower court’s decision forbids them from doing so while current desegregation law allows plaintiffs to prove an equal protection violation where the school district takes an action, such as offering an alternative school, that predictably would create, reinforce or perpetuate racial imbalance. Under the Supreme Court’s ruling in Columbus Board of Education v. Pennick, 443 U.S. 449, 464 (1979), a presumption of intent to discriminate arises where the plaintiff demonstrates that the challenged action had a foreseeable and anticipated disparate impact. If information is available and the district reasonably could have used the information to calculate the impact, the consequences will be considered "foreseeable." This may be true even with regard to school district action that does not directly impact an area of minority concentration but constitutes an action that could have alleviated racial imbalance but did not. See generally, Nancy F. Krent, Newly Emerging Minority Communities: The Impact of Desegregation Laws in Inquiry & Analysis 4 (NSBA Council of School Attorneys, July 1995). The lower court suggests that school districts can avoid constitutional problems by adopting policies and procedures, such as a "straight" lottery system, that are racially neutral, but whether a "colorblind" defense could withstand Pennick’s "foreseeable consequences" doctrine would be highly doubtful, especially where there exists strong indications of imminent racial imbalance.

CONCLUSION

Schools have been entrusted with the vital task of preparing our nation’s children for the future. Where school districts determine after due consideration of available research and community input that placing children in diverse schools and classrooms will enhance the students’ educational experience and so better equip them to live and work in a complex, changing world, they should not be foreclosed by narrow and rigid interpretations of the Constitution from doing so. Furthermore, school districts should be allowed to adopt voluntarily integrative policies that assure that equal educational opportunities remain available to all. For these reasons, amici respectfully urge this court to reverse the decision of the court below.

Respectfully submitted,